The Good Funeral Guide Blog

Please, sir, can I have the skeleton?

Tuesday, 21 August 2012

The case of Christopher Harris vs Woodstock Town Council focussed the not inconsiderable minds of the GFG workforce on the vital necessity of forwarding all tricky legal enquiries straight to Teresa Evans, thence to John Bradfield if necessary. While we are often to be found curled up with a copy of Davies Law of Burial, Cremation and Exhumation and a nice cup of tea, we have not Teresa or John’s nous nor yet their stamina. To understand the law is to read and re-read til you’ve got it… then (this is the important bit; Teresa told me this) go back and read between the lines.

Christopher’s case focussed our minds on the legal status of ashes. This may well have been determined by the Burial Act 1857 which requires dead people to enjoy eternal rest, and only to be moved with permission:

Except in the cases where a body is removed from one consecrated place of burial to another by faculty granted by the ordinary for that purpose, it shall not be lawful to remove any body, or the remains of any body, which may have been interred in any place of burial, without licence under the hand of one of Her Majesty’s Principal Secretaries of State, and with such precautions as such Secretary of State may prescribe as the condition of such licence; and any person who shall remove any such body or remains, contrary to this enactment, or who shall neglect to observe the precautions prescribed as the condition of the licence for removal, shall, on summary conviction before any two justices of the peace, forfeit and pay for every such offence a sum not exceeding level 1 on the standard scale. (Source: Teresa; our bold)

What follows could well be plumb wrong, so please correct me as unkindly as you wish. It’d be good to get to the bottom of this.

The state takes charge of the disposal of the dead for two reasons: 1) to protect public health and 2) to maintain public decency. Neither of these reasons would seem necessarily to account for the Burial Act 1857’s insistence on 3) ensuring eternal rest for those who are dead and buried. Is this a Christian thing stemming from the belief that the soul is embodied? Perhaps it simply derives from the Roman prescript that ‘the only lawful possessor of a dead body is the earth’.

Anyone wanting to engage in a rite of secondary treatment, as many Greeks do (they dig up the skeleton after 3-5 years, wash it and take it away for reburial), is forbidden. You can only dig up a dead person if you have a faculty from the bishop or a licence from the Home Office (or is that the MoJ?). Having done that, to the earth it must return.

The Burial Act 1857 preceded the Cremation Act of 1902, and did not envisage cremated human remains. When cremation became the alternative to burial it became the practice to allow applicants for cremation to have possession of cremated remains to do with as they saw fit. This makes sense — up to a point. Ashes are neither a threat to public health nor are they an affront to public decency. But what about the requirement for eternal rest? What about ‘the only lawful possessor of a dead body is the earth’?

Well, that requirement seems to have persisted in the case of ashes which are interred in a cemetery. Local Authorities Cemeteries Order 1977, which applies to public cemeteries, defines “burial” as including both “human remains” and “cremated human remains”. These interments are recorded in the burial register and there can only be an exhumation with a faculty or a licence. An exception, it seems, is Northern Ireland, where the recording of an ashes burial is at the discretion of the cemetery manager.

Germany followed a more consistent line and insists that ashes, almost without exception, are buried in a sealed container in a cemetery — yet it interrupts eternal repose for buried bodies after around thirty years to make room for someone else. In England and Wales (don’t know about Scotland), all we have to do to arrange for the interment of ashes is to produce the (easily opened) container together with a certificate of cremation. The identity of the ashes is not verified; they could be cat litter. As Jonathan Taylor has oberved: “I’ve buried some dodgy-looking fine yellowish dust that looked to me nothing like cremated remains, and which was found on a bookcase and had a cremation certificate ‘found’ for it at a nearby crematorium by a conscientious sleuthing undertaker but with absolutely no evidence of any connection between the two.”

If you scatter ashes, you are not required to record the location, even in a cemetery. What, then, constitutes an interment? Again, as I understand it, the MoJ’s clarification of the Burial Act as it applies to cremated human remains is that they must be in a container and constitute a ‘discernible mass’. Scatter them in the bottom of a spouse’s coffin, and no permission is required; tuck them in a container under the spouse’s arm and you need someone’s say-so.

If you know better, please say.

All cemeteries experience Monday morning molehill syndrome: the appearance of wee freshly dug mounds on graves where, who knows, ashes have been interred while no one’s looking. It may be the case that some good-hearted funeral directors encourage or conspire with their clients to do it, depriving our cemeteries of valuable revenue stream.

Footnote: The Burial Act 1857 also “exempt[s] from Toll every Person going to or returning from attending the Funeral of any Person who shall be buried in any Burial Ground provided for the Parish, Township, or Place in which he died.” So you know what to say next time you want a free ride over the Clifton suspension bridge or along the M6 Toll.

3 comments on “Please, sir, can I have the skeleton?”

[…] Are they property? This is something the 1902 Cremation Act didn’t think of, as we have seen in an earlier post. Briefly, they are and they aren’t. If they are, then the funeral director would seem to be […]

Charles…I have only just stumbled across this and I thank you for your praises of John and I.

I should like it noted that what I meant about reading “between the lines” is to not always readily accept what you read in books as gospel, and to examine what the law actually says. Taking an interest in law has taught me not to totally rely on what other people have written about from their own interpretation of law. Some academics simply rely on other people’s misinterpretations, instead of reading the law for themselves.

Though I am not an academic, in a report that I have recently submitted to the Ministry of Justice (MoJ) about the Cross Bones and Other Disused Burial Grounds, I assert that Section 25 of the Burial Act 1857 does not apply to all burial grounds in England & Wales. This includes Cross Bones burial ground. I assert that an exhumation licence cannot be issued for this burial ground and some other burial places that are not covered by the 1857 Act. I have provided the MoJ with legal case references. These cases indicate that if an exhumation licence is issued to exhume a body and though cremation didn’t exist at that time, presumably cremated ashes from a place of burial where the Act does not apply, then the licence would be legally invalid. Thus meaning in some circumstances what is buried will be legally protected under common law. I have never read of a common law consent to exhume. In such circumstances anyone carrying out an exhumation could be charged with a criminal offence under common law and face an unlimited penalty which could include a prison sentence (Rudewicz v Secretary of State for Justice 2012 Court of Appeal Ref C1/2011/2873). I am reliably informed that Davies Law edition 2002 does not explicitly state that there are some properties with old graves where none of the Burial Acts apply. The same edition of Davies Law mentions Jacobson v what would now be the local authority which would have been a civil case in 1880. However Davies Law does not mention a crucial legal precedent established by Regina v Jacobson 1880 that relied upon Foster v Dodd 1867. Originally Jacobson had been found guilty for exhuming without a licence. Following Foster v Dodd it was realised that he could not have been given a valid licence even if he had applied for one. Consequently, he was prosecuted on the second occasion for the common law offence of exhuming. As mentioned above as far as I am aware there is no way of obtaining a common law consent to exhume.

Thus far no one at the MoJ has categorically stated that I am wrong. Unless I am proven to be wrong then not only the MoJ, but its predecessors i.e. the Department of Constitutional Affairs and the Home Office which also had the responsibility to issue licences, could each be criticised for not understanding the law which has been the same since 1867.